Citation Nr: 21076052 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 17-26 378 DATE: December 22, 2021 ORDER Reopening of the claim for service connection for an eye disability is granted; the appeal is grated to this extent only. Reopening of the claim for service connection for headaches is granted; the appeal is grated to this extent only. Reopening of the claim for service connection for fatigue is granted; the appeal is grated to this extent only. Reopening of the claim for service connection for a skin rash is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for joint pain is granted; the appeal is granted to this extent only. Entitlement to service connection for sinusitis is granted. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to an initial compensable rating for cystic acne is remanded. Entitlement to service connection for an eye disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for headaches, to include as secondary to tinnitus, is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a thyroid disability is remanded. Entitlement to service connection for cholecystitis is remanded. Entitlement to service connection for a skin disability other than cystic acne is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for a right ankle disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to GERD and a thyroid disability, is remanded. FINDINGS OF FACT 1. A September 1997 rating decision denied service connection for an eye disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. The evidence associated with the file subsequent to the September 1997 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for an eye disability. 3. A September 1998 rating decision denied service connection for headaches. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence associated with the file subsequent to the September 1998 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for headaches. 5. A September 1998 rating decision denied service connection for fatigue. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 6. The evidence associated with the file subsequent to the September 1998 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for fatigue. 7. A September 1998 rating decision denied service connection for skin rashes. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 8. The evidence associated with the file subsequent to the September 1998 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a skin disability. 9. A September 1998 rating decision denied service connection for joint pain. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 10. The evidence associated with the file subsequent to the September 1998 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for joint pain. 11. Sinusitis is presumed to be causally related to the Veteran's presumed exposure to fine particulate matter during his service in Southwest Asia during the Persian Gulf War. 12. Tinnitus has been shown to be causally related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The September 1997 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. New and material evidence sufficient to reopen the claim of service connection for an eye disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 1998 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. New and material evidence sufficient to reopen the claim of service connection for headaches has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. New and material evidence sufficient to reopen the claim of service connection for fatigue has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. New and material evidence sufficient to reopen the claim of service connection for a skin disability other than cystic acne has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. New and material evidence sufficient to reopen the claim of service connection for joint pain has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. The criteria for service connection for sinusitis on a presumptive basis have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303; 86 Fed. Reg. 42,724, 42,733 (Aug 5, 2021) (to be codified at 38 C.F.R. § 3.320). 9. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1988 to June 1992, with service in Southwest Asia. The Veteran has been awarded the Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in October 2015, December 2015, June 2016, and February 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in October 2015 the RO granted service connection for cystic acne, assigning a noncompensable rating, and denied service connection for headaches, bilateral hearing loss, and tinnitus. In December 2015, the RO denied service connection for GERD (then claimed as stomach disability), left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities. In June 2016, the RO denied entitlement to service connection for "allergies with chronic sore throat and sinusitis," cholecystitis, dermatitis, fibromyalgia, and a thyroid disability. The June 2016 decision also continued denials of service connection for GERD, tinnitus, bilateral hearing loss, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities. In August 2016, the Veteran submitted notices of disagreement as to the following: (1) the rating assigned for cystic acne and the denials of service connection for headaches, bilateral hearing loss and tinnitus in the October 2015 rating decision; (2) the denials of service connection for GERD, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities in the December 2015 rating decision; and, (3) the denials of service connection for sinusitis, cholecystitis, dermatitis, fibromyalgia, and a thyroid disability in June 2016. 38 C.F.R. §§ 20.200, 20.201, 20.302. In February 2017, the RO issued another decision denying reopening of service connection for an eye disability, and also denying service connection for a heart disability and obstructive sleep apnea. The Veteran filed a notice of disagreement with those denials that same month. 38 C.F.R. §§ 20.200, 20.201, 20.302. In May 2017, the RO issued a statement of the case denying an increased rating for cystic acne and service connection for headaches, and the Veteran perfected an appeal of this issues that same month. In June 2017, a statement of the case was issued denying service connection for left and right hip disabilities, left and right knee disabilities, left and right ankle disabilities, a thyroid disability, sinusitis, GERD, cholecystitis, bilateral hearing loss, tinnitus, and fibromyalgia. The Veteran perfected an appeal of those denials in July 2017. Finally, in August 2017 the RO issued a third statement of the case reopened the claim for service connection for an eye disability, then denied service connection for an eye disability, a heart disability, and sleep apnea, and the Veteran perfected an appeal of those issues that month. The above three appeals have been merged into a single appeal for the purposes of review by the Board. The Board notes that the Veteran was previously finally denied service connection for allergies with chronic sore throat and sinusitis in September 1997 and allergies in September 1998. However, where a new basis of entitlement has been established by a change in the requirements for entitlement to a benefit, new and material evidence is not required. Spencer v. Brown, 4 Vet. App. 283, 28889 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994); see Boggs v. West, 11 Vet. App. 334, 34243 (1998). To this end, effective August 5, 2021, VA amended its regulations to establish presumptive service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis, as related to exposure to fine particulate matter. 86 Fed. Reg. 42,724, 42,73233 (Aug. 5. 2021) (to be codified at 38 C.F.R. § 3.320). A Veteran will be presumed to have been exposed to fine particulate matter if they have a qualifying period of active service in, in pertinent part, the Southwest Asia theater of operations during the Persian Gulf War. Id.; see 38 C.F.R. § 3.2(i), 3.317(e). As the Veteran has qualifying service, and is therefore presumed to have been exposed to fine particular matter, and a diagnosis of sinusitis, the presumption applies in this case and new and material evidence is not required to reopen that claim. Spencer, 4 Vet. App. at 28889. On his May 2017, July 2017, and August 2017 substantive appeals the Veteran requested a hearing before a Veterans Law Judge (VLJ). However, in July 2021 correspondence, the Veteran's representative stated in writing that the Veteran no longer wanted a hearing. As such, the hearing request is considered withdrawn. 38 C.F.R. § 20.603(e). Since the most recent adjudications of the issues on appeal by the RO, additional VA treatment records have been associated with the file. In November 2021, the Veteran stated that he wished to waive RO consideration of this evidence in the first instance. 38 C.F.R. § 20.1305(c). As such, the Board may consider the newly added evidence at this time. Id. New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 1. Reopening of the claim for service connection for an eye disability. The RO last denied entitlement to service connection for an eye disability in September 1997. The Veteran was notified of the decision, but did not file a notice of disagreement. 38 C.F.R. §§ 20.200, 20.201, 20.302. Further, no new and material evidence was either physically or constructively associated with the file during the one year appellate period, nor have any new, relevant service department records been associated with the file since the issuance of the decision. 38 C.F.R. § 3.156(b), (c); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Therefore, the September 1997 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in September 1997 consisted of the Veteran's service treatment records, VA treatment records, private treatment records, and a lay statement from the Veteran's spouse. The evidence of record failed to show that the Veteran had a current eye disability that was causally related to an in-service injury or disease. Evidence received since the rating decision includes a January 2017 VA examination report in which the Veteran reported having persistent issues with his eye since service. Further, the examiner confirmed that the evidence indicated the Veteran had treatment for an eye injury during service. The Veteran is competent to report persistent problems since service, there is no evidence the examiner was not competent, and both pieces of the evidence are presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a possible in-service injury or disease and a nexus between a potential current disability and service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for an eye disability is warranted. 38 C.F.R. § 3.156(a). 2. Reopening of the claim for service connection for headaches. The RO last denied entitlement to service connection for headaches in September 1998. The Veteran was notified of the decision, but did not file a notice of disagreement during the one year appellate period. 38 C.F.R. § 20.200, 20.201, 20.302. Further, no new and material evidence was associated with the file during the one year period following the decision, nor have new and relevant service department records been associated with the file since. Therefore, the September 1998 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Board notes that in support of his current claim the Veteran is now arguing that his headaches are directly related to service, whereas he previously exclusively argued that they should be presumptively service connected as manifestations of an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). However, the assertion of a new theory of causation cannot be the basis for a new claim for benefits; instead, the factual basis of a claim is the diagnosed disease or injury. Boggs v. Peake, 520 F.3d 1330, 133437 (Fed. Cir. 2008). Since the underlying disease in this claim is the same as the one denied in September 1998, the allegation of a new theory of entitlement does not vitiate the need for new and material evidence. Id. Therefore, new and material evidence is required to reopen the claim. The evidence of record in September 1998 consisted of the Veteran's service treatment records, VA treatment records, private treatment records, and a lay statement from the Veteran's spouse. The evidence of record failed to show that the Veteran had headaches which were causally related to his period of service, or that the headaches were a manifestation of a MUCMI or undiagnosed illness. Evidence received since the rating decision includes an August 2015 private medical opinion linking the Veteran's headaches directly to his period of service. There is no evidence the examiner was not competent, and the opinion is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a current disability that is causally related to the Veteran's period of service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for headaches is warranted. 38 C.F.R. § 3.156(a). 3. Reopening of the claim for service connection for fatigue. As an initial matter, new and material evidence is only required where there has been a prior final denial of the same claim on the same factual basis. 38 U.S.C. §§ 5108, 7104. The factual basis of a claim is the diagnosed disease or injury. Boggs v. Peake, 520 F.3d 1330, 133437 (Fed. Cir. 2008). When determining whether a claim is a new claim for benefits or a claim to reopen a previously denied claim, if the evidence shows "distinctly diagnosed diseases or injuries" then it is a new claim, but if the evidence "tends to substantiate an element of a previously adjudicated matter" it is a claim to reopen. Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). In making this distinction, three factors must be considered: 1) what symptoms the Veteran previously used in describing his prior claims, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claims. Id. In this case, the September 1998 rating decision denied entitlement to service connection for fatigue. At the time of the September 1998 rating decision the Veteran and his spouse generally reported that he experienced symptoms of fatigue, which are similar, if not identical, to the symptoms the Veteran has reported in support of his current claim. The medical evidence at the time did not reflect a diagnosis of sleep apnea specifically or any other sleep-related disability generally. However, records do reflect complaints of generalized fatigue. In denying the claim the RO generally stated that there was no evidence in the Veteran's medical records of a disability underlying his reports of, in pertinent part, fatigue. As such, the RO broadly denied service connection for any disability potentially manifested by fatigue. Finally, overall the evidence received since the September 1998 denial tends to substantiate an element of the previously denied claim for fatigue, in that the Veteran has a current disability of sleep apnea underlying his reports of fatigue. Based on the above, the Board finds that the Veteran's claim for service connection for sleep apnea is a claim to reopen the previously denied claim for service connection for fatigue. Id. Service connection for fatigue was denied in a September 1998 rating decision. The Veteran was notified of the decision, but did not file a notice of disagreement during the one year appellate period. 38 C.F.R. § 20.200, 20.201, 20.302. Further, no new and material evidence was associated with the file during the one-year period following the decision, nor have new and relevant service department records been associated with the file since the issuance of the decision. Therefore, the September 1998 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. While the Veteran is now arguing that his disability is secondary to his GERD and thyroid disability, the assertion of a new theory of causation cannot be the basis for a new claim for benefits. Boggs, 520 F.3d at 133437. Therefore, new and material evidence is required to reopen the claim. The evidence of record in September 1998 consisted of the Veteran's service treatment records, VA treatment records, private treatment records, and a lay statement from the Veteran's spouse. The evidence of record failed to show that the Veteran had a diagnosed disability underlying his reports of fatigue that was related to service, or that the fatigue was a manifestation of a MUCMI or undiagnosed illness. Evidence received since the rating decision includes an August 2015 private medical opinion diagnosing the Veteran with sleep apnea and linking the disability to his GERD and thyroid disability. There is no evidence the examiner was not competent, and the opinion is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a current disability that is causally related to the Veteran's period of service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for fatigue is warranted. 38 C.F.R. § 3.156(a). With the claim for service connection for fatigue reopened, the Board has recharacterized the previously denied claim for service connection for fatigue as a claim for service connection for sleep apnea, which is addressed in the remand section below. 4. Reopening of the claim for service connection for a skin disability. The RO last denied entitlement to service connection for skin rashes in September 1998. The Veteran was notified of the decision, but did not file a notice of disagreement. 38 C.F.R. § 20.200, 20.201, 20.302. Further, no new and material evidence was associated with the file during the one-year appellate period, nor have new and relevant service department records been associated with the file. Therefore, the September 1998 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in September 1998 consisted of the Veteran's service treatment records, VA treatment records, private treatment records, and a lay statement from the Veteran's spouse. The evidence of record failed to show that the Veteran had a skin disability that was either causally related to his period of service or a manifestation of a MUCMI or undiagnosed illness. Evidence received since the rating decision includes an August 2015 private medical opinion providing a separate diagnosis of dermatitis which the private provider linked to the Veteran's service. There is no evidence the examiner was not competent, and the opinion is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a current disability, separate from the already service-connected cystic acne, that is causally related to the Veteran's period of service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for a skin disability other than cystic acne is warranted. 38 C.F.R. § 3.156(a). 5. Reopening of the claim for service connection for joint pain. As discussed with respect to the claim for service connection for sleep apnea above, new and material evidence is only required where there has been a prior final denial of the same claim on the same factual basis. 38 U.S.C. §§ 5108, 7104. The factual basis of a claim is the diagnosed disease or injury. Boggs, 520 F.3d at 133437. When determining whether a claim is a new claim for benefits or a claim to reopen a previously denied claim, if the evidence shows "distinctly diagnosed diseases or injuries" then it is a new claim, but if the evidence "tends to substantiate an element of a previously adjudicated matter" it is a claim to reopen. Velez, 23 Vet. App. at 204. In making this distinction, three factors must be considered: 1) what symptoms the Veteran previously used in describing his prior claims, 2) what the medical evidence showed at the time of the prior denials, and 3) how broadly the RO adjudicated the scope of the prior claims. Id. In this case, the September 1998 rating decision denied entitlement to service connection for joint pain generally. At the time of the September 1998 rating decision the Veteran and his spouse generally reported that he experienced symptoms of joint and muscle pain in various areas, which are identical to the symptoms the Veteran has reported in support of his current claims for service connection for fibromyalgia, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities. The medical evidence at the time of the September 1998 did not reflect a diagnosis of any specifical joint disabilities or fibromyalgia, but do reflect complaints of generalized joint or muscle pain. In previously denying the claim the RO generally stated that there was no evidence of a disability underlying to Veteran's reports of join pain in the medical records. As such, the RO broadly denied service connection for any disability potentially manifested by joint pain, which would include both specific joints and disabilities manifested by generalized pain such as fibromyalgia. Finally, overall the evidence received since the September 1998 denial tends to substantiate an element of the previously denied claim for joint pain, with the Veteran submitted evidence that he had a possible diagnosis of fibromyalgia, as well as diagnoses of bilateral hip, knee, and ankle disabilities underlying his reports of joint pain. Based on the above, the Board finds that the Veteran's claims for service connection for fibromyalgia, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities are claims to reopen the previously denied claim for service connection for joint pain. Id. As discussed above, service connection for joint pain was denied in a September 1998 rating decision, which the Veteran received notice of but did not appeal. 38 C.F.R. § 20.200, 20.201, 20.302. No new and material evidence was associated with the file during the one year period following the decision, nor have new and related service department records been associated with the file. Therefore, the September 1998 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in September 1998 consisted of the Veteran's service treatment records, VA treatment records, private treatment records, and a lay statement from the Veteran's spouse. The evidence of record failed to show that the Veteran had a diagnosed disability underlying his reports of generalized joint pain that was related to service, or that the joint pain was a manifestation of a MUCMI or undiagnosed illness. Evidence received since the rating decision includes an August 2015 private medical opinion stating that the Veteran currently has fibromyalgia, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities that are related to his period of service. There is no evidence the examiner was not competent, and the opinion is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished facts of a current disability that is causally related to the Veteran's period of service. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claim for service connection for joint pain is warranted. 38 C.F.R. § 3.156(a). With the claim for service connection for joint pain reopened, the Board has recharacterized the previously denied claim for service connection for joint pain as separate claims for service connection for fibromyalgia, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities, which are addressed in the remand section below. Service Connection Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Effective August 5, 2015, VA amended its regulations to establish presumptive service connection for asthma, rhinitis, and sinusitis, to include rhinosinusitis, as related to exposure to fine particulate matter. 86 Fed. Reg. 42,724, 42,73233 (Aug. 5. 2021) (to be codified at 38 C.F.R. § 3.320). A Veteran will be presumed to have been exposed to fine particulate matter if they have a qualifying period of active service in, in pertinent part, the Southwest Asia theater of operations during the Persian Gulf War. Id.; see 38 C.F.R. § 3.2(i), 3.317(e). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed in service injury or disease is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service injury. 38 U.S.C. § 1154(b). 6. Entitlement to service connection for sinusitis. The Veteran was diagnosed with sinusitis during a May 2017 VA examination. Further, a review of the Veteran's DD-214 reflects that he served in the Southwest Asia theater of operations from approximately August 1990 to March 1991. As the Veteran served in Southwest Asia during the Persian Gulf War, he is presumed to have been exposed to fine particulate matter during that period of service. 86 Fed. Reg. 42,724, 42,73233 (Aug. 5. 2021) (to be codified at 38 C.F.R. § 3.320); see 38 C.F.R. § 3.2(i), 3.317(e). Finally, as the Veteran has a current diagnosis of sinusitis and is presumed to have been exposed to fine particulate matter in service, the Veteran's sinusitis is presumed to be related to such exposure. Id. As such, entitlement to service connection for sinusitis as presumptively related to in-service exposure to fine particulate matter is granted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303; 86 Fed. Reg. at 42,73233 (to be codified at 38 C.F.R. § 3.320). 7. Entitlement to service connection for tinnitus. The Veteran has reported that he currently has tinnitus, which he is competent to diagnose. Charles v. Principi, 16 Vet. App. 370, 374 (2002). Concerning an inservice injury or disease, the Veteran has alleged that he was exposed to gunfire and other loud noise during service, at which point he began to notice ringing in his ears. The Veteran's service treatment records do not contain complaints of or treatment for tinnitus. However, the Veteran's DD-214 reflects that the Veteran was awarded the Combat Action Ribbon, which establishes that the Veteran engaged in combat. 38 U.S.C. § 1154(b). As such, the Veteran's statements alone are sufficient to establish the occurrence of the alleged in-service injury, as exposure to gunfire is consistent with the nature of combat service. Id. Therefore, an in-service injury has been shown. During the course of the appeal, the Veteran has asserted that his tinnitus has been persistent since service. These statements are competent and there is no evidence that they are not credible. Jandreau, 492 F.3d 1372. As such, they are entitled to significant probative weight as to the continuity of tinnitus since service. VA obtained a medical opinion concerning tinnitus in September 2015. The examiner stated that the Veteran hearing loss was less likely than not related to his period of service, noting that the Veteran had normal hearing sensitivity while in the military, and further that he had a history of high blood pressure. However, the examiner did not address the Veteran's reports of in-service noise exposure during his period of combat service. Dalton v. Peake, 21 Vet. App. 23 (2007). Further, the examiner did not explain how the Veteran's history of high blood pressure was relevant, as it was not explicitly identified as a risk factor for tinnitus. As such, the opinion is entitled to no probative weight. In support of his claim, the Veteran submitted a July 2015 opinion from a private audiologist, who stated that the tinnitus was likely related to his period of service. In support of the opinion, the examiner noted that exposure to recurrent weapons fire, as endorsed by the Veteran, has been shown to result in the development of tinnitus. The examiner further noted that the Veteran had reported noticing tinnitus in service and that it had persisted since. There is no evidence that the audiologist was not competent or that the opinion is not credible, and the opinion is supported by a well-reasoned rationale. As such, the opinion is entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Based on the foregoing, the only competent and credible evidence of record concerning a nexus are the private medical opinion and the Veteran's statements, which establish that his current tinnitus is causally related to his in-service noise exposure. Therefore, service connection for a tinnitus is granted. 38 C.F.R. §§ 3.102, 3.303(b). REASONS FOR REMAND 1. Entitlement to an initial compensable rating for cystic acne. In support of his claims, the Veteran submitted an August 2015 private opinion which notes that the Veteran was being treated by a dermatologist on a regular basis. Further, in October 2021 the Veteran submitted private treatment records reflecting private treatment for his skin. However, a review of the file reflects that only sporadic private treatment records are associated with the file, and there is no evidence of any attempts to obtain any potential private records. As there is an indication that there are outstanding private treatment records that may be relevant to his claim for an increased rating for cystic acne, a remand is necessary so that the Veteran may be requested to submit or authorize for release any private treatment records relevant to his claim. 38 C.F.R. § 3.159(c)(1). Second, the Veteran was last provided with a VA skin examination in October 2015. Since that examination, the regulations governing the rating of skin disabilities were amended. 83 Fed. Reg. 32,592 (Jul. 13, 2018) (eff. Aug. 13, 2018). As such, a new examination is warranted in light of the new amended rating criteria for skin disabilities. 2. Entitlement to service connection for an eye disability and a bilateral hearing loss disability. VA treatment records associated with the file reflect the Veteran receives regular medical treatment through the VA. However, the most recent VA treatment records associated with the file are from February 2018. Further, in his statements the Veteran has generally indicated that he receives on-going treatment for all of his claimed disabilities. As there is evidence of outstanding VA treatment records, and such records must be obtained regardless of relevance, the claims must be remanded so that attempts may be made to obtain any outstanding VA treatment records from February 2018 forward. Sullivan v. McDonald, 815 F.3d 786, 79092 (Fed. Cir. 2016). 3. Entitlement to service connection for headaches. VA obtained opinions concerning whether the claimed headaches were directly related to service or were caused or aggravated by tinnitus in October 2015. Concerning direct service connection, the examiner stated that the headaches were less likely than not related to service, and instead were more likely than not related to a concussion sustained in February 1987, prior to his June 1988 enlistment. However, the Veteran's enlistment examination noted no neurologic issues generally or headaches specifically. As such, the Veteran is presumed sound upon enlistment, and a medical opinion would need to establish that the Veteran's headaches clearly and unmistakably pre-existed service and clearly and unmistakably were not aggravated by service. 38 U.S.C. § 1111, 1132, 1137; 38 C.F.R. § 3.304. As the examiner did not utilize the correct evidentiary standard, the October 2015 opinion is inadequate. Concerning secondary service connection, the examiner simply stated that the disability was less likely than not related to tinnitus, again citing the February 1987 concussion as a more likely cause. However, both causation and aggravation must be discussed for an opinion on secondary service connection to be adequate. El-Amin v. Shinseki, 26 Vet. App. 136, 14041 (2013); see also Allen v. Brown, 7 Vet. App. 439 (1995). As both the direct and secondary service connection opinions are inadequate, a remand is necessary for a new examination and opinion to determine the nature and etiology of the claimed headaches. 4. Entitlement to service connection for a heart disability. In October 2021, the Veteran submitted select treatment records reflecting that he receives some private treatment for his claimed heart disability. As there is an indication that there are outstanding private treatment records that may be relevant to his claim for service connection for a heart disability, a remand is necessary so that the Veteran may be requested to submit or authorize for release any relevant private treatment records. 38 C.F.R. § 3.159(c)(1). VA obtained an examination and opinion concerning the etiology of the claimed heart disability in December 2016. The examiner stated that there was no evidence of a current heart disability on examination, noting that holter monitor, echocardiogram, chest x-ray, and electrocardiogram test results were all normal. The examiner further noted that the Veteran denied symptoms of syncope, dizziness, dyspnea, and fatigue at the time of the examination. However, since that opinion the Veteran submitted an October 2019 private treatment record reflecting that he was treated for an episode of syncope. As the Veteran has submitted evidence indicating that a heart disability may have developed since the December 2016 examination, a remand for a new examination and opinion is necessary. 5. Entitlement to service connection for GERD, left and right hip disabilities, left and right knee disabilities, left and right ankle disabilities, a thyroid disability, and cholecystitis. VA obtained opinions concerning the etiology of GERD, left and right hip disabilities, left and right knee disabilities, and left and right ankle disabilities in November 2015 and a thyroid disability and cholecystitis in May 2016. The November 2015 opinion stated that the Veteran's disabilities were less likely than not manifestations of an MUCMI or undiagnosed illness as they were all disabilities with clear and specific etiologies. The examiner further stated there was no medical evidence linking the disabilities to exposure to environmental hazards. The May 2016 examiner then stated that the thyroid disability and cholecystitis were less likely than not manifestations of a MUCMI or undiagnosed illness, noting that none of the medical literature supported a link between the disabilities and environmental hazards. However, the Veteran has submitted a private medical opinion which links the Veteran's GERD, left and right hip disabilities, left and right knee disabilities, left and right ankle disabilities, thyroid disability, and cholecystitis directly to in-service injuries or diseases reported by the Veteran to the private examiner. As neither the November 2015 or May 2016 opinions considered the in-service injuries contained in the private medical opinion, and instead addressed only exposure to environmental hazards, the Board finds that a remand is necessary for additional medical opinions concerning the etiologies of the claimed GERD, left and right hip disabilities, left and right knee disabilities, left and right ankle disabilities, thyroid disability, and cholecystitis. 6. Entitlement to service connection for fibromyalgia is remanded. VA obtained a medical opinion concerning whether the Veteran had a current diagnosis of fibromyalgia in May 2016. The examiner stated that there was no evidence in the Veteran's medical records that he had a current diagnosis of fibromyalgia. However, the examiner did not reconcile this finding with the August 2015 private medical opinion stating that the Veteran did in fact have a diagnosis of fibromyalgia, although not explaining why such a diagnosis was warranted. As such, the Board finds that a remand is warranted for another examination to determine whether the Veteran has a current diagnosis of fibromyalgia. 7. Entitlement to service connection for a skin disability. VA obtained opinions concerning the etiology of the Veteran's skin disability other than cystic acne in October 2015 and May 2016. In October 2015 the examiner stated that the Veteran was only diagnosed with cystic acne, which was causally related to the Veteran's service. However, the opinion did not address the alternative diagnosis of dermatitis contained in an August 2015 private medical opinion. In May 2016, the examiner stated that the Veteran's claimed dermatitis was not related to any environmental hazard exposures, as the medical literature did not support such a connection. However, the examiner did not address the August 2015 private opinion linking the Veteran's dermatitis to an in-service cyst removal in August 1990. As such, a remand is necessary for a new opinion concerning the etiology of the claimed skin disability. 8. Entitlement to service connection for sleep apnea. Concerning entitlement to service connection for sleep apnea, that disability has been claimed as secondary to the claimed thyroid disability and GERD, which are being remanded herein. Thus, any determinations with respect to those claims would materially affect a determination concerning service connection for sleep apnea. As such, it is inextricably intertwined with the claims for service connection for a thyroid disability and GERD being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records from February 2018 forward. 2. Contact the Veteran and request that he submit or authorize for release all private treatment records relevant to his claimed disabilities. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for an examination to determine the current severity of his service-connected cystic acne. 4. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed headaches. The examiner should answer the following: a) Are the Veteran's headaches attributable to a diagnosis with a known etiology or pathophysiology? b) If so, is it at least as likely as not (a fifty percent probability or greater) that the headaches are causally related to the Veteran's active service, to include exposure to environmental hazards? In answering (b), attention is invited to an August 2015 private opinion linking the Veteran's headaches to his service and noting the Veteran reported headaches in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 5 uploaded 10/15/21). c) If not, is it at least as likely as not (a fifty percent probability or greater) that the headaches were caused by the service-connected tinnitus? d) If not, is it at least as likely as not (a fifty percent probability or greater) that the headaches were aggravated (worsened) by the tinnitus? e) If the headaches are not attributable to a known diagnosis, is it at least as likely as not (a fifty percent probability or greater) that the complaints of headaches represent a manifestation of an undiagnosed or a medically unexplained chronic multisymptom illness? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed heart disability. The examiner should answer the following: a) Are the Veteran's reports of chest pain and syncope attributable to a diagnosis with a known etiology or pathophysiology? All testing deemed necessary should be conducted. b) If so, is it at least as likely as not (a fifty percent probability or greater) that the disability is causally related to the Veteran's active service, to include exposure to environmental hazards? c) Is it at least as likely as not (a fifty percent probability or greater) that the complaints of chest pain and syncope represent a manifestation of an undiagnosed or a medically unexplained chronic multisymptom illness? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's GERD. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the GERD is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 private opinion linking the Veteran's GERD to his reports of vomiting, nausea and diarrhea in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 1 uploaded 10/15/21) and (2) service treatment records noting gastrointestinal symptoms and a diagnosis of gastroenteritis (labelled "STR - Medical" pgs. 32, 33 uploaded 8/28/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 7. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed bilateral hip, knee, and ankle disabilities. The examiner should answer the following: a) Identify all current hip disabilities. b) Is it at least as likely as not (a fifty percent probability or greater) that the left or right hip disability is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 private opinion linking bilateral hip arthritis to trauma from prolonged running in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 6 uploaded 10/15/21); and, (2) a July 1988 service treatment record showing a complaint of bilateral leg pain after running and a diagnosis of shin splints (labelled "STR - Medical" pg. 37 uploaded 8/28/15). c) Identify all current knee disabilities. d) Is it at least as likely as not (a fifty percent probability or greater) that the left or right knee disability is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 private opinion linking bilateral knee arthritis to trauma from prolonged running in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 6 uploaded 10/15/21); and, (2) a July 1988 service treatment record showing a complaint of bilateral leg pain after running and a diagnosis of shin splints (labelled "STR - Medical" pg. 37 uploaded 8/28/15). e) Identify all current ankle disabilities. f) Is it at least as likely as not (a fifty percent probability or greater) that the left or right ankle disability is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 private opinion linking bilateral ankle arthritis to trauma from prolonged running in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 6 uploaded 10/15/21); and, (2) a July 1988 service treatment record showing a complaint of bilateral leg pain after running and a diagnosis of shin splints (labelled "STR - Medical" pg. 37 uploaded 8/28/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 8. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed thyroid disability. The examiner should answer the following: a) Identify all current thyroid disabilities. b) For all disabilities so identified, is it at least as likely as not (a fifty percent probability or greater) that the thyroid disability is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 opinion diagnosing the Veteran with hypothyroidism and linking the disability to the Veteran's reports of nausea, diarrhea, and fatigue in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 2 uploaded 10/15/21); and, (2) service treatment records noting gastrointestinal symptoms and a diagnosis of gastroenteritis (labelled "STR - Medical" pgs. 32, 33 uploaded 8/28/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 9. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's cholecystitis. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the cholecystitis is causally related to the Veteran's active service? Attention is invited to the following: (1) an August 2015 opinion diagnosing the Veteran with cholecystitis and linking the disability to the Veteran's reports of vomiting, diarrhea, and constipation in service (labelled "Medical Treatment Record - Non-Government Facility" pg. 1 uploaded 10/15/21); and, (2) service treatment records noting gastrointestinal symptoms and a diagnosis of gastroenteritis (labelled "STR - Medical" pgs. 32, 33 uploaded 8/28/15). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 10. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's claimed fibromyalgia. The examiner should answer the following: Clarify whether the Veteran has a current diagnosis of fibromyalgia. If it is determined that a diagnosis of fibromyalgia is not warranted, the examiner should explain why this is the case. Attention is invited to the following: (1) an August 2015 private medical opinion stating that the Veteran has a diagnosis of fibromyalgia (labelled "Medical Treatment Record - Non-Government Facility" pg. 5 uploaded 10/15/21). A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 11. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's skin disability. The examiner should answer the following: a) Identify all current skin disabilities other than cystic acne. b) For all identified disabilities, is it at least as likely as not (a fifty percent probability or greater) that the skin disability is causally related to the Veteran's active service? In answering (a) and (b), attention is invited to the following: (1) an August 2015 private opinion linking diagnosed dermatitis to the Veteran's in-service treatment for cysts (labelled "Medical Treatment Record - Non-Government Facility" pg. 7 uploaded 10/15/21); and, (2) service treatment records noting a cyst removal in August 1990 (labelled "STR - Medical" pgs. 17 uploaded 8/28/15). (Continued on the next page) A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.